KUALA LUMPUR, April 5 — The Attorney General’s Chambers (AGC) has opted not to represent the Malaysian Medical Council (MMC) in a lawsuit brought forward by six Universiti Sains Malaysia (USM) genetic pathology graduates seeking specialist recognition.
The AGC’s decision is unexpected, as it has not only abstained from representing the MMC in the judicial review bid, but also refrained from objecting to the lawsuit, despite provisions within the Medical Act 1971 (Act 50) stipulating the status of MMC members as public servants while discharging their duties in the council.
Under Section 5 and 6 of the Medical Act, MMC members are considered public servants and the Public Authorities Protection Act 1948 applies to them. It was expected that the AGC would extend legal representation to defend the council, which regulates the practice of medicine in Malaysia, as part of the government.
“The Attorney-General’s Chambers has no objection to the application for leave for judicial review and requests that our presence be exempted,” senior federal counsel Ahmad Hanir Hambaly wrote in a letter last November 22 to the High Court, as sighted by CodeBlue.
“The Attorney-General’s Chambers isn’t representing the respondent at the substantive stage either.”
According to court documents in the case of the six USM pathology (medical genetics) graduates versus MMC, MMC is represented by private law firm, Kanesh Sundrum & Co.
Interestingly, MMC’s official communication channels, including its chief executive’s email, are hosted under the domain “mmc.gov.my”, indicating governmental ties. The general email address, “[email protected]”, aligns with the Ministry of Health (MOH).
The High Court here granted leave last January 3 to the judicial review application by the six pathology graduates in medical genetics from USM, after the MMC rejected last August their applications to be registered as specialists on the National Specialist Register (NSR).
Specialist Recognition Requires NSR, Federal Gazette Only For Allowances
In its affidavit filed with the High Court on February 29, MMC stated that specialist recognition is exclusively attained through registration with the NSR, not through federal gazettement or university accreditations.
Acting MMC chief executive Dr Mohamed Anas Mohamed Hussain said federal gazettement, and privileging and credentialing by universities, only facilitates doctors in receiving allowances or specialist incentive payments, without constituting recognition for specialty registration.
“I want to state that any certification or recognition of programmes by government agencies other than the respondent (MMC) does not qualify for specialty registration as per the Medical Act 1971 and does not involve the MMC at any material time,” Dr Anas said, according to court documents.
Among the six USM pathology graduates involved in the lawsuit against MMC, four have been listed as pathologists (medical genetics) in the Federal Gazette, while the other two, who are also medical lecturers, obtained credentialing and privileging approval at Hospital UiTM to practise clinical genetic pathology from 2022 to 2025.
Dr Anas said that the privileging and credentialing process by Hospital UiTM did not involve either the National Credentialing Committee (NCC) or MMC.
He further argued that the gazettement by the Health director-general (DG) for four of the pathology graduates was also carried out after the 2012 amendment of the Medical Act and 2017 regulations came into force in July 2017.
Section 42(6) states that any individual registered as a specialist in a registry of specialists or appointed as a specialist by the Health DG before the enactment of the amended Act shall be considered registered as a specialist under the Act.
The 2012 amendment of the Medical Act and 2017 regulations mandated that all doctors must be registered under this Act to practise as specialists to ensure compliance with qualifications and standards set by the MMC.
Medical Genetics Pathology Subspecialty Not Recognised By MMC
The MMC maintains that it does not recognise the Master of Pathology (Medical Genetics) programme at USM because it requires re-accreditation in accordance with the Malaysian Qualifications Agency (MQA) Act and the amended Medical Act.
“The respondent (MMC) cannot process applicants’ requests for one valid reason: the applicants do not possess recognised postgraduate qualifications, thus failing to meet the requirements stipulated under Section 14B of the Medical Act,” Dr Anas said.
Section 14B of the Medical Act outlines the eligibility criteria for specialist registration, requiring individuals to have completed specialised training in an institution recognised by the MMC, hold a recognised specialist qualification, and demonstrate fitness and good character to the Council’s satisfaction.
In its affidavit, the MMC stated that the field of medical genetic pathology was not included in the list of specialisations used by the NCC for registration before July 1, 2017. Therefore, it was not automatically included in the list from 2017 onward.
In October 2016, the head of the pathology department at Kuala Lumpur Hospital (HKL) issued a request to the Academy of Medicine Malaysia (AMM), as the MMC secretariat, to recommend the recognition of medical genetics as a specialisation under pathology in the NSR. This would allow specialists in this field to be registered and practice in accordance with the Medical Act.
However, the then-health deputy DG for medicine informed the head of MOH’s pathology services that the NCC had decided that the application for recognition of the medical genetics pathology sub-specialisation could not be considered at that time.
Subsequently, in February 2020, the President of the College of Pathologists made a similar request to list the medical genetic pathology sub-specialisation in the NSR.
In January 2022, the MMC received an application from USM’s School of Medical Sciences for the Master of Pathology (Medical Genetics) program to be recognised by the MMC for specialist registration purposes.
USM’s application was discussed in the Joint Technical Committee (JTB) and Medical Education Committee (MEC) meetings in February and March 2022, respectively. It was found that the programme had not been accredited in accordance with the MQA Act, which empowers the MMC to approve or reject accreditation applications based on JTB recommendations.
Therefore, in March 2022, USM was recommended to obtain re-accreditation in accordance with the MQA Act and the Medical Act 1971, based on Malaysian Standards for Specialty Training.
On these grounds, the MMC subsequently rejected the application for specialist registration by the six USM graduates.
Additionally, MMC questioned the timing of the judicial review filing. The MMC said that the applicants failed to file for judicial review within three months after receiving a letter from MMC’s lawyer (Messrs Kanesh Sundrum & Co) dated September 30, 2022, which clearly stated the decision to reject their applications.
Instead, the applicants relied on MMC’s letter dated August 21, 2023, for their judicial review, despite it containing the same information as the previous letter.
In other words, MMC contends that the applicants were aware of the decision much earlier and should have filed for judicial review accordingly.
However, this argument likely does not affect the case, as the judicial review application, filed in the High Court on November 16, was subsequently granted leave by the court on January 3. The case is scheduled for hearing on June 20.
